11/26/2006

Ohio voters may get to decide next fall whether to restrict government's ability to seize private property for economic development.

State lawmakers are considering acting to put a constitutional amendment on the November 2007 ballot before the end of the year that would keep governments from using economic development as a justification for seizing people's homes.

Responding to recommendations of a task force the Legislature formed in the wake of the U.S. Supreme Court's controversial Kelo decision, the amendment also would forbid governments from using the increased revenue they might make in ceding land to a private developer as evidence that the property is "blighted."

"That was exactly what was the heart of the matter in the Kelo situation," said Jason Warner, an aide to Rep. Bob Gibbs, a task force member pushing the amendment. "Government was going into areas where it was not necessarily blighted, but they could make more money off of the property as a shopping mall than as a residential development."

Gibbs and Sen. Tim Grendell, who co-chaired the Ohio task force, alerted fellow lawmakers of their intention to introduce the amendment in memos issued last week. Grendell's memo said he is crafting a bill for introduction by next week to complement the proposed amendment that would lay out specific procedures for government takings of private land, including the definition of blight.

In July, the Ohio Supreme Court unanimously ruled in the landmark Norwood case that private development on its own - even when it will improve economic conditions - isn't a public use allowed under the Ohio Constitution.

Across the nation, property rights advocates praised the ruling, the nation's first since the Supreme Court said in Kelo v. City of New London, Conn., that governments had such a right.

Many were outraged by the decision, which they viewed as turning on its head the concept of eminent domain as a tool for the public good. Many states responded by proposing constitutional restrictions on the practice.

Such propositions passed this month in Arizona, Michigan, Florida and New Hampshire, among other states. In California, where environmentalists and politicians saw their state's proposal as a threat to natural areas, the issue failed.

Warner said Ohio took a more measured approach with its task force than some other states, and Gibbs sees no need to rush the amendment.

"This amendment wouldn't appear on the ballot until November 2007 anyway, so we don't really see any usefulness in rushing it to the ballot right now when we've just completed a lengthy election cycle," he said. "He's just getting the word out that we're not going to let this go away."

Sen. Kevin Coughlin, who is leading the eminent domain issue in the Senate, said he and Grendell are in conversations with Senate leadership over the timing of the vote - if it is taken at all.

He noted that the task force's recommendation to advance a constitutional change survived heated debate by only one vote, and that no decision has been made on whether the amendment should move forward at all.

Ruling Republicans lost one Senate seat and seven House seats from their majorities on Election Day, which could be a factor because authorizing an amendment requires a three-fifths majority of both chambers, he said.

"While this is not a partisan issue, you can bet some of the cities are going to view any constitutional change as an encroachment on their home rule, so in the minds of Democrats property rights go out the window," Coughlin said.

Susan Cave, executive director of the Ohio Municipal League, said cities' ability to seize property under eminent domain is already sufficiently limited in Ohio, particularly following the Norwood case.

"Now that we've had a fairly sweeping Ohio Supreme Court decision, which really covered every inch of the issue, it seems they're just doing something that they probably don't need to do," she said. "There are a number of protections in place and they've been used very successfully, I must say, by the other side."

She said cities fear some traditional uses of eminent domain, such as running sewer and water lines to new subdivisions, could be viewed as economic development and stopped under such a measure.

Rep. Bill Seitz, who co-chaired the task force with Grendell, said passing the issue during the lameduck session would give opponents of the measure ample time if they want to put together their own amendment.

"I'm of the mind what when we have a blue-ribbon task force and they come out with recommendations, you should move on the recommendations before it becomes just another report gathering dust somewhere," he said.

Disclaimer

The content on this website is strictly for educational purposes only. Any opinions of the author do not reflect the opinions of Eminent Domain Watch and belong strictly to the author. Unless otherwise stated, post authors' opinions do not reflect those of the law firm representing the author.